John  .'  rke 


*ffiJ* 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


ROBERT  ERNEST  COWAN 


AN  EXTRAORDINARY  ISB 


EXTRAORDINARY    REMEDY. 


BY  JOHN    H.  BURKE. 


m 


B?nr3e 

186- 


N\ 


DEDICATION 


The  following  Brief  is  published  by  John  H.  Burke,  for 
the  benefit  of  the  Bench,  the  Bar  and  the  mercantile  com- 
munity, in  order  that  the  first  named  may  fully  appreciate 
the  uses  to  which  the  high  prerogative  Writ  of  Prohibition, 
may  be  put,  leading  to  great  abuse  of  the  discretionary 
powers  of  the  Court,  while  it  is  hoped  the  class  last  named 
will,  after  a  perusal  thereof,  be,  in  future,  less  likely  to  submit 
themselves  to  the  dictation,  control  or  advice  of  any  one 
person  who  may  not  always  be  acting  entirely  from  disin- 
terested motives.  Should  any  of  the  parties  named  feel 
aggrieved  at  remarks  made  therein,  let  them  remember  the 
story  of  "Poor  Dog  Tray,"  and  profit  thereby. 

The  Brief  is  a  review  of  questions  which  will  come  up 
before  Judge  Evans  on  April  22d,  on  application  for  sixty 
writs  against  Tillson,  Tax-Collector,  and  is  as  follows : 


* 


IN  THE 


SUPERIOR  COURT 


OF  THE 


CITY  AND  COUNTY  OF  SAN  FfiANCISCO. 


W.  S.  Hobart  vs.  Tillson,  No.  3,839. 

R.  F.  Morrow  vs.  Tillson,  No.  3,840. 

Win.  Alvord  vs.  Tillson,  No..  3,841. 

E.  E.  Eyre  vs.  Tillson,  No.  3,842. 

California  Insurance  Co.  vs.  Tillson,  No.  3,843. 

D.  O.  Mills  vs.  Tillson,  No.  3,844. 
W.  S.  Lyle  vs.  Tillson,  No.  3,845. 

I.  Glazier  et  al.  vs.  Tillson,  No.  3,846. 

J.  B.  Haggin  vs.  Tillson,  No.  3,847. 

Robert  Sherwood  vs.  Tillson,  No.  3,848. 

Seth  Cook  vs.  Tillson,  No.  3,849. 

Peter  Donahue  vs.  Tillson,  No.  3,850. 

San  Francisco  and  North  Pacific  R.  R.  Co.  vs.  Tillson, 

No.  3,851. 
J.  B.  Haggin  et  al.  vs.  Tillson,  No.  3,852. 
Louis  Sloss  vs.  Tillson,  No.  3,853. 
Lloyd  Tevis  vs.  Tillson,  No.  3,854. 
R.  H.  McDonald  vs.  Tillson,  No.  3,855. 

E.  J.  Baldwin  vs.  Tillson,  No.  3,856. 

293335 


Bank  of  California  vs.  Tillson,  No.  3,857. 

L.  L.  Robinson  vs.  Tillson,  No.  3,858. 

H.  M.  Newhall  vs.  Tillson,  No.  3,859. 

Anglo-California  Bank  vs.  Tillson,  3,860. 

J.  L.  Flood  vs.  Tillson,  No.  3,8(31. 

H.  Miller  vs.  Tillson,  No.  3,862. 

Geo.  W.  Beaver  vs.  Tillson,  No.  3,863. 

Hutchinson,  Kohl  &  Co.  vs.  Tillson,  No.  3,864. 

Geo.  R.  Wells  vs.  Tillson,  No.  3,865. 

J.  C.  Flood  et  al.,  Ex.  vs.  Tillson,  3,866. 

A.  J.  Bryant  vs.  Tillson,  No.  3,867. 

Wm,  M.  Lent  vs.  Tillson,  No.  3,868. 

Daniel  Meyer  vs.  Tillson,  No.  3,869. 

Nevada  Bank  vs.  Tillson,  No.  3,870. 

A.  E.  Davis  vs.  Tillson,  No.  3,871. 

Louis  McLane  vs.  Tillson,  No.  3,872. 

I.  C.  May  vs.  Tillson,  No.  3,873. 

Wm.  Sharon  vs.  Tillson,  No.  3,874. 

Thos.  Bell  vs.  Tillson,  No.  3,875. 

C.  C.  Coleman  vs.  Tillson,  No.  3,876. 

Daniel  Cook  vs.  Tillson,  No.  3,877. 

Chas.  Mayne  vs.  Tillson,  No.  3,878. 

J.  C.  Flood  vs.  Tillson,  No.  3,879. 

Claus  Spreckles  vs.  Tillson,  No.  3,880. 

J.  V.  Coleman,  Ex.,  vs.  Tillson,  No.  3,881. 

R.  N.  Graves  vs.  Tillson,  No.  3,882. 

John  Rosenfeld  vs.  Tillson,  No.  3,883. 

F.  F.  Low  vs.  Tillson,  No.  3,884. 

Oliver  Eldridge  vs.  Tillson,  3,885. 

W.  F.  Babcock  vs.  Tillson,  3,886. 

Louis  Sloss  &  Co.  vs.  Tillson,  No.  3,887. 

Maria  Coleman  vs.  Tillson,  No.  3,888. 

J.  H.  Redington  vs.  Tillson,  No.  3,889. 


Virginia  and  Gold  Hill  Water  Co.  vs.  Tillson,  No.  3,890. 

Nicholas  Luning  vs.  Tillson,  No.  3,891. 

South  Pacific  Coast  R.  R.  Co.  vs.  Tillson,  No.  3,892. 

Jas.  Phelan  vs.  Tillson,  No.  3,893. 

Con.  O'Connor  vs.  Tillson,  No.  3902. 

Pacific  Mill  and  Mining  Co.  vs.  Tillson,  No.  3,951. 

J.  C.  Flood  &  Co.  vs.  Tillson,  No.  3,952. 
The  above  may  well  be  considered  together,  as  they  are 
all  based  on  petitions  filed  by  the  parties  severally  named, 
asking  that  Writs  of  Prohibition  may  issue,  directed  to 
Charles  Tillson,  as  Tax  Collector  of  the  City  and  County  of 
San  Francisco,  prohibiting  him  as  such  Tax  Collector  from 
enforcing  or  collecting  certain  State  and  County  taxes  due 
by  the  respective  petitioners,  on  certain  property  included  in 
what  is  known  as  the  subsequent  or  supplemental  personal 
property  assessmeut  roll  of  the  City  and  County  of  San 
Francisco  for  the  fiscal  year  1880  and  1881. 

It  seems  that  the  above  petitioners  resided  or  were  doing 
business  in  the  City  and  County  of  San  Francisco,  at  12 
o'clock,  noon,  on  the  first  Monday  of  March,  1880,  and  that 
they  were  each  possessed  of  personal  property  then  subject 
to  assessment  in  said  city  and  county. 

An  examination  of  the  regular  assessment  roll  of  personal 
property  of  said  city  and  county  for  the  said  fiscal  year  1880 
and  1881,  as  completed  by  the  Assessor  on  or  about  the  first 
Monday  in  June,  1880,  shows  that  the  said  petitioners  or 
most  of  them,  after  a  demand  made  by  the  Assessor, 
neglected  and  refused  to  make  or  file  with  the  Assessor  a 
statement,  either  oral  or  in  writing,  as  by  law  required,  by 
reason  of  which  failure  the  petitioners,  or  such  of  them  as 
were  assessed  in  such  roll,  were  so  assessed  arbitrarily  by 
the  Assessor,  though  on  an  inadequate  amount  of  property, 
while  a  portion  of  the  petitioners,  namely, — Louis  Sloss  & 


Co.,  Louis  Sloss,  Hutchinson,  Kohl  &  Co.,  J.  C.  Flood  & 
Co.,  Haggin  &  Tevis  (as  a  firm),  C.  C.  Coleman,  I.  C.  May, 
J.  L.  Flood,  Virginia  and  Gold  Hill  Water  Co.,  Pacific  Mill 
and  Mining  Co.,  Seth  Cook  and  R.  H.  McDonald, — were  not 
assessed  at  all,  though  possessed  of  large  amounts  of  pro- 
perty. 

These  facts  being  ascertained,  complaints  were  filed  with 
the  State  Board  of  Equalization  at  Sacramento,  asking  that 
the  assessments  of  said  parties  be  increased  to  the  amounts 
stated  in  the  complaints,  where  the  party  complained  of  had 
been  already  assessed,  though  in  an  inadequate  amount,  and 
where  no  assessment  had  been  made  a  request  was  made 
that  the  person  so  escapiug  be  assessed  on  an  amount  stated 
to  the  Board. 

The  parties  were  cited  to  appear  before  the  said  State 
Board  of  Equalization  at  a  session  thereof  in  September  last, 
and  ample  opportunity  was  afforded  to  each  to  appear  in 
person  or  by  representative,  and  satisfy  the  Board  that 
the  increase  in  the  assessment  prayed  for  was  unjust,  or  to 
deny  the  allegations  contained  in  the  complaints  filed  with 
said  State  Board. 

This  they  failed  and  refused  to  do,  and  the  charges  con- 
tained in  the  complaints  then  on  file  with  said  State  Board 
stand  to  this  day  not  only  unrefuted  by  the  petitioners  above 
named,  but  admitted  pro  confesso  by  their  own  acts  and 
admissions. 

Instead  of  appearing  before  the  State  Board  and  present- 
ing their  defense  to  the  charges,  if  they  had  any  to  offer, 
resort  was  had  to  the  Supreme  Court  to  contest  the  power 
of  the  Board. 

Subsequently  the  information  presented  to  the  State 
Board  of  Equalization  was  placed  before  the  Assessor  of  the 
City  and  County  of  San  Francisco,  and  that  officer  as  com- 


manded  by  law— Statutes  1873-4,  Page  478— included  the 
names  of  the  persons  and  the  property  described  in  the 
petitions  filed  by  the  above  petitioners  in  the  supplemental 
a  ssessment  roll  of  said  City  and  County  for  the  year  1880- 
81,  which  roll  was  completed  and  returned  by  him  on  October 
25th,  1880. 

Having  thus  reviewed  the  causes  leading  to  what  may  be 
justly  termed  these  peculiar  petitions — peculiar,  not  only 
because  of  the  Dumber  of  persons  seeking  the  benefit  of 
t  his  high  prerogative  writ,  but  also  as  to  the  reasons  set 
forth  in  the  several  petitions,  asking  for  the  issuance  of 
these  writs — it  is  proper  to  present  briefly  some  of  the 
objections  to  be  raised  to  the  granting  of  the  relief  prayed 
for. 

The  Court  has  no  jurisdiction  of  the  person  or  the  subject 
matter. 

I. 

Because,  a  Writ  of  Prohibition  is  not  the  proper  remedy, 
as  it  runs  only  from  one  judicial  tribunal  to  an  inferior 
judicial  tribunal,  and  will  not  run  from  a  judicial  tribunal  to 
a  ministerial  officer,  as  a  Tax  Collector,  prohibiting  him  from 
performing  certain  ministerial  duties  devolving  upon  him  by 
statute. 

People   vs.  Board  of  Election  Commissioners,  54  Cal. 

404. 
Spring  Valley  Water  Works  vs.  San  Francisco.  52  Cal. 

111. 
Maurer  vs.  Mitchell,  53  Cal.  289. 
In  calling  attention  to  the  decisions  of  our  Supreme  Court 
in  the  cases  above,  it  would  be  well  to  consider  the  facts  of 
each  case. 


8 

In  52  Cal.  Ill,  the  Spring  Valley  Water  Co.  asked  for 
a  writ  prohibiting  the  city  authorities  of  San  Francisco  from 
interfering  with  the  rights  of  the  Company  to  cut  off  water 
from  its  mains,  where  the  same  was  taken  for  ordinary 
municipal  purposes  (except  for  extinguishment  of  fires), 
unless  the  city  make  arrangements  to  pay  the  company  for 
use  of  water.  In  this  case  the  Court  held,  a  writ  would  not 
issue  for  the  reasons  stated  above,  and  the  petition  was 
dismissed,  Judges  McKinstry,  Crockett  and  .Rhodes  assent- 
ing therein. 

In  53  Cal.  289,  Leo  Maurer  and  sixty-five  others  applied 
for  a  writ  against  Wm.  Mitchell,  Tax  Collector  of  San 
Francisco,  to  prohibit  the  collection  of  certain  taxes  assessed 
for  opening  Dupont  street,  the  case  being  in  all  respects 
similar  to  the  ones  now  before  Judge  Evans.  The  Court, 
without  any  dissenting  opinion,  dismissed,  the  writ  for  the 
reasons  stated  herein. 

In  54  Cal.  404,  One  Taylor  applied  for  a  writ  prohibiting 
the  Board  of  Election  Commissioners  of  San  Francisco  from 
ordering  an  election  of  fifteen  free-holders,  and  the  Court, 
for  the  reasons  above  stated,  denied  the  writ,  the  opinion 
being  delivered  by  Morrison,  C.  J.  and  concurred  in  by 
Judges  Thornton,  Ross,  Myrick,  Sharpstein,  McKee  and 
McKinstry. 

II. 

The  several  petitioners  for  these  writs,  if  entitled  to  any 
standing  in  Court,  must  show  that  the  relief  asked  for  is 
specific,  and  comes  properly  under  the  class  of  cases  named 
in  Section  3367  of  the  Civil  Code,  or  that  its  preventive 
coming  under  the  cases  named  in  Section  3368  of  the  Civil 
Code.     If  these  petitioners  have  any   course  of  action,  it 


9 

must  arise  under  the  last  named  section,  and  the  relief 
sought  must  be  to  prevent  the  Tax  Collector  from  doing 
that  which  ought  not  to  be  done.  (Civil  Code,  Section 
3,366,  3,368.) 

Conceding|this  to  be  the  case,  then  the  petitioners,  in  seek- 
ing to  procure  writs  of  prohibition  against  the  Tax  Collector, 
have  failed  to  apply  for  the  proper  remedy  by  means  of  which 
to  secure  the  preventive  relief  sought,  since  such  preventive 
relief,  if  given  at  all,  can  only  be  so  given  by  injunction, 
provisional  or  final. 

(See  Sec.  3,420,  Civil  Code.) 

III. 

If  a  Writ  of  Prohibition  were  the  proper  remedy,  the  peti- 
tioners above  named  are,  by  the  admissions  contained  in 
their  several  petitions,  precluded  from  obtaining  from  the 
Court  the  relief  sought. 

IV. 

The  several  petitioners  show  affirmatively  that  each  of  the 
persons  applying  for  these  writs  were  the  owners  of  all  of 
the  property  for  which  they  were  assessed  in  said  supple- 
mental roll  for  the  fiscal  year  1880-1881,  and  of  the  value 
stated  therein ;  that  Alexander  Badl am,  the  Assessor,  well 
knew  and  was  fully  advised  of  the  nature,  condition  and 
value  of  the  property  of  each  petitioner.  But  there  is  no 
showing  that  the  petitioners  or  any  of  them  had  been  pre- 
viously assessed  the  fiscal  year  1880-1881,  as  the  owners  of 
the  property  named  in  said  supplemental  roll,  or  any  part 
thereof,  either  on  the  regular  assessment  roll,  or,  in  fact, 
that  said  property  had  been  assessed  at  all.     Therefore,  be- 


10 

ing  the  owners  of  the  property  named  in  the  roll,  it  was  the 
duty  of  the  Assessor  to  assess  them  thereon. 
Constitution,  Art.  XIII,  Section  1. 
Political   Code   Sec.   3,607,  3,617,  3,627,   3,629,  3,648, 
3,649. 

See  Sec.  9  of  an  Act  entitled  "  An  Act  in  relation  to  the 
assessment  and  collection  of  taxes  upon  personal  property 
in  the  City  and  County  of  San  Francisco,  approved  March 
18,  1874,"  statutes  1873-74,  page  478. 

There  is  an  allegation  that  the   assessment  was  made  in 
fraud,  though  what  is  to  be  understood  therefrom  is  by  no 
means  definite,  and  the  allegation  is  susceptible  of  many 
different  constructions. 

What  do  these  petitioners  mean  by  the  term  fraud,  as 
used  by  them?  Do  they  intend  to  say  that  after  escaping 
for  a  series  of  years  from  bearing  their  just  proportion  of 
the  burdens  of  government,  it  is  a  fraud  upon  them  and 
their  rights  to  compel  a  portion  of  their  property  to  pay  a 
tardy  tax  ? 

Do  they  intend  to  say,  because  they  may  for  years  have 
refused  to  obey  the  law,  that  it  is  a  fraud  now  to  compel 
them  to  obey  the  law  and  respect  its  majesty? 

Do  they  intend  to  say  that  the  poorer  and  middle  classes 
must  bear  all  of  the  burdens  of  government,  and  that,  be- 
cause they  (the  petitioners)  have  wealth,  it  is  fraud  on  them 
and  their  hereditary  rights  to  compel  them  once  in  years  to 
contribute  a  few  dollars  towards  supporting  the  State  govern- 
ment that  protects  them  ? 

Do  they,  or  such  of  them  as  refused  to  make  statements 
to  the  Assessor,  intend  to  say  that,  because  the  Assessor  did 
not  have  them  sent  to  the  county  jail,  as  he  could  have 
done,  for  so  refusing,  a  fraud  has  been  committed,  whereby 
they  have  been  deprived  of  their  just  and  equitable  rights? 


11 

Do  they  intend  to  say  that  there  was  some  private  under- 
standing existing,  but  not  disclosed  to  the  Court,  whereby 
it  was  agreed  by,  with,  or  through  the  party  instigating  the 
filing  of  these  petitions,  or  anyone  else,  that  for  certain  con- 
siderations they  should  not  be  assessed,  or  if  assessed,  such 
assessment  should  be  light,  and  therefore  to  assess  them 
thereafter  is  a  fraud  ? 

Do  they  intend  to  convey  the  impression  to  the  mind  of  the 
Court,  or  public  generally,  that,  acting  under  the  advice  and 
instigation  of  some  person  to  the  Court  unknown,  they  con- 
tributed to  a  fund  to  defray  the  legal  expenses  incurred  in 
evading  paying  their  proportion  of  taxation,  and  because  the 
desired  object  was  not  thus  attained,  they  are  now  liable  to 
the  same  tax  to  defray  legal  expenses,  and  therefore  it  is 
fraud?  If  so,  would  it  not  be  better  to  settle  with  the 
person  leading  them  into  the  scrape?  Would  it  not  be 
more  honorable  and  in  the  long  run  less  expensive  to  pay 
their  just  share  of  taxes  without  compulsion,  than  to  con- 
tinually be  led  aside  from  the  plain  path  of  duty,  thus  incurr- 
ing debts  and  responsibilities  which  may  not  soon  have  an 
end  ? 

Do  they  or  any  of  them  realize  the  nature  of  the  oath  chey 
took  in  applying  for  these  writs  ? 

These  questions  are  propounded  not  for  the  purpose  of 
answering  them,  for  they  must  be  answered  by  each  of  the 
petitioners  themselves,  nor  are  they  propounded  for  the 
purpose  of  reflecting  on  any  one  unnecessarily,  but  rather 
to  cause  serious  consideration  of  a  serious  subject,  a  subject 
which,  without  doubt,  few  of  the  petitioners  have  given  any 
consideration  whatever,  else  many  of  them  would  not  have 
made  and  filed  the  affidavits  and  petitions  asking  for  these 
writs. 

293335 


12 

To  the  unbiased  or  judicial  mind,  it  must  be  plain  from  a 
perusal  of  the  petitions  on  file,  and  an  examination  of  the 
assessments  rolls,  that  if  any  fraud  has  been  committed,  the 
petitioners  themselves  must  have  been  parties  thereto, 
whether  intentionally  or  otherwise,  and  may  not  now  take 
advantage  of  their  own  wrong. 

There  are  other  reasons  which  might  be  advanced  with 
propriety  to  show  why  the  writs  should  not  be  issued,  were 
it  necessary  so  to  do;  but  as  the  remedy  sought  is  not  the 
proper  one  on  the  showing  made  by  the  petitioners,  it  is 
not  necessary  to  discuss  questions  which  might  come  up  on 
a  proceeding  of  proper  character,  if  brought  in  a  proper 
shape.  It  is  only  necessary  to  call  attention  to  the  pecu- 
liarity of  the  present  proceedings  and  the  facts,  and  com- 
pare them  with  a  case  in  Colorado  of  a  somewhat  similar 
nature,  in  which  State  the  statute  resembles  our  own. 

The  following  is  a  synopsis  of  the  decision  referred  to : 

Under  the  law,  it  was  the  duty  of  the  complainant  to 
make  return  to  the  Assessor.  *  *  *  Failing  to  furnish  the 
information,  it  is  the  duty  of  the  Assessor  to  act  upon  what 
means  of  knowledge  he  possesses.  In  any  case,  if  injustice 
is  done,  either  in  assessing  him  for  a  larger  number  of  cattle 
than  are  properly  taxable,  or  in  assessing  him  at  all,  he  may 
present  the  facts  to  the  Commissioners.     *    *    * 

It  does  not  appear  that  the  complainant  ever  listed  his 
property,  *  *  nor  does  it  appear  that,  having  been  listed 
*  *  for  too  many  cattle,  that  he  ever  appeared  *  *  *  to 
have  it  corrected. 

The  proposition  that  a  Court  of  Equity  will  take  jurisdic- 
tion amounts  to  this:  that  the  owner  of  personal  property 
may  neglect  his  statutory  duty  of  listing  his  property;  may 
neglect  to  appear  before  tribunals  established  by  law  to  cor- 


13 

rect  errors,  etc.,  and  by  a  bill  (similar  to  these)  devolve  the 
duties  of  himself,  the  Assessor  and  Board  of  County  Com- 
missioners (Equalization)  upon  a  Court  of  Equity,  and 
through  it  *  *  review  and  correct  the  assessment  rolls. 
The  proposition  is  not  to  be  entertained. 
Price  vs.  Kramer,  4  Colorado,  554. 

For  these  reasons  alone  the  petitions  should  be  dismissed 
and  the  writs  denied,  since,  from  a  perusal  of  the  papers  on 
file,  one  is  led  to  the  conclusion  that  to  grant  the  relief 
asked  for  would  be  a  parody  upon  justice,  and  must  result 
in  turning  our  courts  into  a  bulwark,  behiud  which  ever}' 
criminal  or  wrong-doer  could  successfully  shield  himself 
from  the  consequeuce  sattending  the  commission  of  crime 
or  violation  of  law. 

To  use  the  courts  for  the  purpose  and  in  the  manner 
sought  by  the  petitioners,  is  to  say,  iii  effect,  that  wealth  can 
openly  refuse  to  obey  the  law;  and  when  called  to  account 
therefor,  the  Court  will  protect  the  culprits  in  their  wrong- 
doing. 

Respectfully, 

JOHN   H.   BURKE. 


UNIVERSITY  OF  CALIFORNIA  AT  LOS  ANGELES 

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